Copyright trolls, biz scum, freetards - it's NOT black and white

New Media Rights man on the 50 shades of grey in IP debate

Sysdmin blog A new intellectual property rights organisation has popped up in the United States called New Media Rights. New Media Rights strikes a different balance than most intellectual property organisations; they champion the rights of independent creators as well as those of individual consumers.

New Media Rights provide free legal assistance to consumers targeted by copyright trolls as well as to independent creators seeking to assert their intellectual property rights. They are a program of the California Western School of Law in San Diego, but are independently funded and rely on donations.

New Media Rights also participates strongly in advocacy regarding intellectual property issues, and have gotten themselves invited to participate in the review of extant law. Their novel approach to the intellectual copyright piqued my interest; I asked Shaun Spalding, assistant director at New Media Rights, if I could pick his brain. Here is the resulting interview (italics are as provided by Spalding):

The Register: I am a regular consumer, interested very strongly in consumer rights. I am also a creator who makes a living through writing. I see the value in copyright... and the overwhelming abuse of it. I see things like SOPA, ACTA, CETA and the TPP as being horrifically bad for individuals and for society. I live in a country where it is illegal to rip a DVD I purchased legitimately so that I can view it on my netbook that does not have an optical drive. I fear the copyright Gestapo knocking on my door for some imagined slight... and yet I understand the need for both regulation and enforcement of copyright. What's your take?

Spalding: That's interesting to hear because this is the central give-and-take surrounding the policy work that we do at New Media Rights. Literally today*, the executive director, Art Neill, is testifying at the Copyright Office about the details surrounding a "Copyright Small Claims court"**.

None of the big tech sites seem to be covering this, but this is probably as big as the DMCA in terms of its affect on individual internet users, independent creators, and their interactions with large media companies. We were invited to the testimony as one of the organisations that can say:

(A) Do we need a small claims court for copyright?

(B) How should it work?

(C) What can we do so large copyright holders can't abuse the system, independent creators can finally get some "justice" for wholesale misappropriation of their work, and individual internet users won't be held in fear at the idea that, for the first time, uploading a copyright infringing Facebook profile picture might actually land you in court.

Our policy comments that we've put together over the last year for this hearing balance those three competing interests, and that's what we do every day with our direct legal assistance as well.

We're (1) a consumer-oriented organisation (for example, defending innocent internet-users who are wrongly implicated in filesharing cases). BUT we're also an organisation for (2) independent creators: the type of people who make their livelihood by commercially exploiting their creativity.

Most people in the "copyright reform" movement acknowledge that too much IP protection hurts everyone. Consumers are hurt because there's less creativity in the marketplace when people can't reuse information. Small creators are hurt because remixing and repurposing ideas from other sources are the lifeblood of small projects, and strong IP laws either completely prevent or put people in fear of repurposing existing ideas.

But people in the reform movement sometimes don't acknowledge that too little IP protection often hurts consumers and creators in the same way. Consumers are hurt because rampant misappropriation of IP leads companies to put less money into creating new products or puts them out of business completely. Media creators take less risks if they can't imagine a marketplace where they can at least break even. Independent creators who have incredibly slim profit margins are sometimes the worst hit by their inability to enforce their rights against people who make wholesale, non-fairly used copies.

We lose a lot of voices in the marketplace when an independent photographer whose database of photos is stolen by a third party and sold can't afford to bring that malicious third party to justice because an IP lawsuit costs $50,000 to try.

So yes, it's a delicate balance. And we walk that tightrope everyday by doing things like encouraging open licences like Creative Commons (all of our educational resources including the videos on our Youtube are CC licensed). For people we directly assist, in situations where it makes sense, we tell them about open source and open licensing schemes. We regularly counsel people about the public domain and how it can be utilised and repurposed.

Finally, we advocate for policy reforms that really only increase competition and don't hurt anyone except for backward-looking opponents of progress. This is why we supported and helped secure consumers' ability to jailbreak their phones and mobile devices earlier this year.

The Register: The debate seems to have become polarised to extremes, with individuals seeking a compromise derided by all players.

Spalding: It's really true that it's difficult to find moderate debate. People like Eric Goldman have well-written, moderate IP blogs, but these are few and far in between. Much more often, you'll see either reformers demonising "corporate media" without looking at the facts of the situation or these large media companies with scorched-earth campaigns to fight independent creatives (the type that our free direct assistance fights back against).

The reality of the situation is, like everything, a grey area. For example, lots of these media companies don't want to be so broad with copyright and trademark takedowns, but there's so much infringement out there that it's just "easier" for them to handle everything in one broad stroke without taking into account issues like fair use***. Once you present a problematic situation where they got it wrong, many of them are open to fixing their errors. The problem is, it takes an organisation like ours to do that.

At the same time, there are crusaders on the other side of the coin who argue that things like "piracy" and other wholesale, non-transformative copying don't negatively affect anyone. When that argument is dissected, it's easy to find lots of ways this type of activity affects jobs, the economy, and the availability of original creative content for consumers.

The Register: What stances does New Media Rights take regarding the balance of copyright versus fair use?

Spalding: Fair use is one of the most significant legal areas that we have to deal with on a daily basis. We advice projects that want to stay out of trouble on how to adhere to fair use. We also regularly defend people who are accused of infringement who are clearly fairly reusing their content.

The gray areas of fair use provide some benefits for consumers and indie creators, but fair use is also problematic because of the fear it creates. It's extremely difficult to advise anyone to put together a large-scale commercial project based on fair use even if legally they are allowed to because practically, the way IP is enforced, they'll have expensive legal battles ahead of them that will probably cost them enough money to put them out of business.

This is why we regularly advocate for common sense exceptions to Copyright law and expansions to fair use. We did work attempting to get fair use expressly expanded for remix artists earlier this year for example.

The Register: How do your initiatives help creators and consumers? How do they affect copyright holders, whom we all know are not necessarily the same individuals or organisations as the creators themselves?

Spalding: At New Media Rights, we treat everyone as a "copyright holder," and I think that's one of the ways we can see through the polemic back and forth between the Copyright "reform" side and the Copyright "enforcement" side.

Think about it this way: the internet has created a world where anyone with enough talent can create a work at home that rivals the production quality of large media companies. We all create something new we create an internet meme out of a picture we've added a caption to that wildly changes its context. We express ourselves creatively, culturally, and politically on our blogs, our Twitters, and our Tumblrs. The consumers of Deviant Art are also the copyright holders of Deviant Art.

And I think that if people understand fully, that we're all content creators now, not just Viacom, the two sides will see what they have in common and the way that the internet works in practice will start to mirror what these laws look like and how they're enforced.

What that means to New Media Rights is that we take anyone's assistance request seriously, whether they want their rights enforced or they want to defend their rights. If they're working on an educational/innovative/important project and they're being taken advantage of, we will help them get closure.

One of our roles is also to train a generation of new IP lawyers to be attuned to the needs of indie creators and regular internet users. It's extremely difficult to get any legal training in IP outside of private firms that really deal only with large corporate clients. Naturally, a lawyer may only ever work on the large-scale enforcement side and never have the perspective from the other side. We bring 8-15 law students a year through our program where they can see IP laws through a "public interest" lens.

The Register: Who is New Media Rights? Who funds you?

Spalding: We're funded by individual donations. Since our services are free, we hope that the people we help will realise what a great service we have and want to pay it forward to help us in the future. So far, this has been working since 2007, but it requires a huge amount of work to show that we're worth supporting every year.

We work 10 to 12 hour workdays. There have been months where I've worked every day including weekends for 30 to 40 days at a time. This is because we know that we only have one shot at the end of the year to get people to see all the great work we've done and want to support us during our fundraiser. And I think we did a good job this year:

We've directly assisted over 400 people/projects this year, and we've made over 14 hours of free, openly-licensed educational video, and we've also done lots of law reform work.

We did this all with two staff members and volunteers. That's ridiculous. That amount of work is absurd! Another organisation may have only done one of those things in a year and then felt like asking their community for funding.

I am extremely proud of everything that we do here and the idea that close to 100 per cent of the money people donate (which is tax deductible by the way) goes straight to helping people because we have partnerships to cover our administrative costs.

Interesting indeed. We'd love to hear your take on New Media Rights' approach to the intellectual property debate in the comments below. ®

* This interview exchange occurred on 27 November, 2012.

** The hearings took place in November in New York and LA. UK residents have been able to settle IP issues in a small claims court in the form of the Patents County court since 26 September.

*** Under US law, a limitation on exclusive rights pertaining to criticism, comment, news reporting, teaching, scholarship or research. The UK has a similar concept, "fair dealing", which is prescribed within the 1988 Copyright, Designs and Patents Act in sections 29 and 30.